SLAPP 2.0: Second Generation of Issues Related to Strategic Lawsuits Against Public Participation

• Date: 01 February 2015

45 ELR 10136 ENVIRONMENTAL LAW REPORTER 2-2015

A R T I C L E S

SLAPP 2.0:

Second

Generation of

Issues Related to

Strategic

Lawsuits Against

Public

Participation

by Lori Potter and W. Cory Haller

Lori Potter is a Partner at Kaplan Kirsch Rockwell LLP in

Denver, Colorado, with a practice in environmental and

public land law. W. Cory Haller recently completed his

term as an Attorney-Fellow at Kaplan Kirsch Rockwell.

Summary

is Article updates a July 2001 -

sis article on Strategic Lawsuits Against Public Par-

ticipation (SLA PPs) and common-law and statutory

defenses against them. Since that survey, a dozen addi-

tional jurisdictions have enacted statutes providing

some degree of protection for SLAPP defendants, and

courts have continued to apply these statutes as well

as common-law and constitutional (Petition Clause)

defenses. In general, while “second-generation” issues

have added some wrinkles to SLAPP practice, the

results remain the same: almost all SLAPPs are ulti-

mately dismissed.

Captain Eric Krystkow iak was stationed at the U.S. Air

Force Academy in Colorado Springs and re siding with

his wife and family in a home o the ba se when a new

development wa s proposed for his block. Spe aking at a

city council hearing, C aptain Kry stkowiak questioned

whether the development would be consistent with city

zoning. e cit y rejected the development on the basis

of noncompliance with the city code; the developer

then led suit against him individual ly. It took six years

from t he time Captain Kr ystkowiak rst learned of the

development until the Colorado Supreme Cour t, apply-

ing the st ate’s common-law anti-SLA PP standard, nally

armed the d ismissal of the claims. By this time, he had

been tr ansferred to a nother base , where he continued to

deal with the SLAPP. He is now a Colonel in the Air Force

and Commander of the 45th Launch Group.1

I. Introduction

Strategic Lawsuits A gainst Public Participation (SLAPPs)

may be the lega l world’s analog to horror movies: spine-

chilling, but hard to look away from. is Article is a

sequel to a primer on the issue that appeared in the July

2001 edition of .2 Both articles survey

the leading case law, the most recent statutes, and other

resources on the subject. For a full treatment of the subject,

the two articles should be read together.

A SL APP is t he ling of litigation against an individ-

ual who, like Captain K rystkowiak, communicates with

or tries to inuence the government. Experience shows

that nea rly all claims ta rgeting petitioning are eventually

dismissed,3 as were those against him, but the mere ling

of litigation often serves a plainti’s purpose of chilling the

continued exercise of First Amendment rights.4

e signicance of the chilling eect of a SLAPP is hard

to overstate. A SLAPP defendant pays a high price in time,

money, and peace of mind to defend an action brought in

response to that individual’s exercise of the right to peti-

tion the government. Frequently, a defendant will c ease

1. See Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859, 872 (Colo. 2004).

e a uthor led an amicus bri ef for the Le ague of Women Voters and

SLAPP Resou rce Center in support of Krystkowiak in the Colorado Su-

preme Court.

2. Lori Potter, Strategic Lawsuits Against Public Participation and Petition

Clause Immunity, 31 ELR 10852 (July 2001).

3. Potter, supra note 2, at 10853 and n.26.

4. See generally Potter, supra note 2.

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

Article. Lori Potter can be contacted at lori.potter.denver@gmail.

com. W. Cory Haller can be contacted at cory.haller@gmail.com.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.